The daily herald. [volume] (Honolulu, Hawaiian Islands) 1886-1887, 1887-04-26

hereby repealed
"Under thee circumstances we have,
and we do so with much regret, to say
that the mere possession Of opium is
not an offense punishable by any law
now in force.
However, whether a person having
opium in possession could not properly
be charged and convicted Of smuggling
the same is another question, and one
that the Court will have to consider
when it is raised"
Coming back to the first point taken
by defendant, "tbat the Crown has not
proved its charge Of unlawful possession
of OPIUM" their Honors cited prece-
dent TO show that they we're "not to
consider the question whether the
charge of unlawful possession Of opium
was fully proven, as the appeal is
limited to the points of law taken.
Finding, from the papers sent up, evil
dence that the defendant had posses
sion Of opium, we inquire no further
and over-rule this point" The second
point had already been fully con-
sdered.
Only the third point, that the Act
Of 1886 is unconstitutional, and there
fore void and of no effect" remained to
be considered. This point was taken
on the basis Of Article II Of the Con
stitution, which reads: "To avoid inn
proper influences which may result
from intermixing in one and the same
Act, such things as have no proper
relation to each other, every law shall
embrace but one object, and that shall
be expressed in its title" Defendants
counsel had contended that the Act
was unconstitutional and void, in that
its title was Gan Act to Regulate the
Importation and Sale Of Opium" while
the Act itself legislated upon not only
the importation and sale Of opium, but
Of preparations Of opium"
The Court here finds it necessary to
enlarge somewhat upon its duty where
questions involving the constitutionality
Of law are presented. Judge Cooley,
in his work on Constitutional Limita-
, tions," is quoted at some length, in the
view that the Judge should not, without
due necessity, intervene to pronounce o
law null and void. The pith Of The
quotation will be found in the follow.
ing passages
"The Courts may declare legislative
enactments unconstitutional and void
, in some cases, but not because the
, judicial power is superior in degree OF
dignity to the legislative. Being re-
quired to declare what the law is in
the cases which come before them,
they must enforce the Constitution as
The paramount law, whenever a legisla'
tive enactment comes in conflict with
+ it. But the Courts sit, not to review
or revise the legislative action, but &c
t enforce the legislative will and it is
, only when they find that the I,egisla
, ture has failed to keep within its con
, stitusional limits, that they are at liberty
to disregard its action"
{ Their Honors assert that the powel
= to declare law unconstitutional is ex.
: pressly given to the Supreme Court by
: Section S24 Of the Civil Code. Article
10 of the Constitution prescribes that
/ all laws heretofore enacted, or that may
+ hereafter be enacted, which are con
( trary TO this Constitution, shall be null
and void. Article % of the Consttu
ton prescrIbes that decisions Of the
Supreme Court, when made by ma
jority of the Justices thereof, shall
be final and conclusive upon
all parties. "But," their Honor:
proceed to say, considering the
solemn and responsible nature Of
the function thus devolved upon the
Supreme Court, we adopt the princi
pie which prevails in other Courts, that
the Court will not pass upon consti
. tutional question and declare statute
to be invalid, unless decision upon
that very point becomes necessary to
, the determination of the cause" They
cite further. authority for the conclu
sion that in any case where there are
, other grounds upon which to rest 9
. Judgment, SO that the constitutional
question, even if legitimately present
led by the record, becomes immateria
to the case, the Court will base it,
Judgment upon those other grounds
{ and leave the question of constitution
/ ality to be passed upon when a cast
e arises which cannot be otherwise
a disposed OF. Having therefore
E found that the defendant in thi
4 case cannot be punished by an,
: law now in force for the odense o
E which he is charged TO wit, the pos
: session OF opium-the Court declare
e that "the question whether this law |
II in conflict with the Constitution be
), comes immaterlal"
The Court further held that it wa
{. not proper for them to listen to a
y objection to the constitutionality OF al
II Act by party whose rights it did nc
e affect. "The defendant is charge
b with a specific ofense under la
IS which we have held imperative agains